Falmouth wins turbine nuisance case

FALMOUTH — A Barnstable Superior Court jury on Thursday sided with Falmouth officials in a lawsuit over one of the town’s wind turbines.

Despite the decision, the turbine known as Wind 1 — one of two turbines at the Falmouth Wastewater Treatment Facility — must remain shut down as the town battles its own Zoning Board of Appeals in Land Court and faces off with neighbors in a morass of additional legal challenges.

The case focused on whether Wind 1 was a nuisance to its neighbors when it was in operation. The Andersen family, of 211 Blacksmith Shop Road, alleged the operation of Wind 1 interfered with the enjoyment of their property and sought damages for physical injury, loss of property value and loss of income.

“The jury determined there was no nuisance at the property and awarded no damages,” Falmouth Town Counsel Frank Duffy said.

The case goes back to 2013, and is a court’s first determination on a nuisance claim involving the turbines.

“We were disappointed with the verdict,” said Christopher Seine, one of the Andersens’ attorneys.

He and his clients are reviewing the jury’s decision and have not yet determined if they will appeal, he said. They have 30 days to do so.

The Andersens, as well as other neighbors, have complained that the noise and pressure generated by the turbines has caused headaches, nausea, and other physical ailments.

Their lawsuit is one of four nuisance cases revolving around the turbines, which have been plagued by controversy since soon after they were erected in 2010.

“There are three common law nuisance cases pending in Barnstable Superior Court, each alleging that the operation of Wind 1 and/or Wind 2 constitutes a nuisance at the plaintiffs’ property.” Duffy wrote in an email. “In each case the plaintiffs ask for money damages.”

None of the other cases have yet been assigned trial dates.

The town Zoning Board of Appeals ordered Wind 1 to be shut down in September 2015, and Wind 2 runs only between 7 a.m. and 7 p.m., Duffy said. The energy produced by Wind 2 is used to run the wastewater treatment facility, and any extra power goes back to the grid.

In addition to the Andersens’ lawsuit decided Thursday, there are eight other cases in total involving the turbines.

In another case, the Andersens, along with the Falmouth Zoning Board of Appeals, are scheduled to go to trial against the town in Barnstable Superior Court on May 8, according to Duffy.

“In this case the Andersens filed a complaint with the Falmouth ZBA alleging that the operation of Wind 1 and Wind 2 constitutes a nuisance under the zoning bylaw at their property at 211 Blacksmith Shop Road,” Duffy wrote.

The town had appealed an abatement order granted by the Zoning Board of Appeals.

Reached by telephone on Thursday, Neil Andersen declined to speak with a Times reporter, unless it was in a face-to-face interview, which was not immediately possible.

Barry Funfar, another neighbor, has a similar case pending against the town. That case is currently under advisement with a decision pending. Funfar also brought a lawsuit against the Zoning Board of Appeals.

“In this case Funfar and others petitioned the ZBA to order Wind 2 shut down because it lacks a special permit from the ZBA,” Duffy wrote. “The ZBA determined the Funfars filed their claim too late and denied the relief.”

The Funfars have appealed the case to Barnstable Superior Court and it is pending, with no trial date set.

There is another case against the Zoning Board of Appeals contesting which zoning bylaws apply to Wind 1 that is also pending, with no trial date.

The town and Zoning Board of Appeals are at odds in Land Court in Boston. The town had applied for a special permit to operate Wind 1, but it was denied by the Zoning Board of Appeals. The town has appealed that decision, but there is trial date as of yet.

Even with eight more lawsuits to be decided, Duffy said Friday’s win was a step in the right direction.

“It’s progress but not the end,” he said.